The Individuals with Disabilities Education Act: Overview of P.L. 108-446

CRS Report for Congress
The Individuals with Disabilities Education
Act (IDEA): Overview of P.L. 108-446
Nancy Lee Jones
Legislative Attorney
American Law Division
Richard N. Apling
Specialist in Social Legislation
Domestic Social Policy Division
Summary
The Individuals with Disabilities Education Act (IDEA) is the main federal
program concerning the education of children with disabilities. It authorizes state and
local aid for special education and related services for children with disabilities and
contains detailed due process protections for children with disabilities and their parents.
On December 3, 2004, President Bush signed “the Individuals with Disabilities
Education Act Improvement Act” (P.L. 108-446), a major reauthorization and revision
of IDEA. The new law preserves the basic structure and civil rights guarantees of IDEA
but also makes significant changes in the law. Most provisions of P.L. 108-446 go into
effect on July 1, 2005. This report will briefly discuss several of the major changes
made by the reauthorization. For more detailed information see CRS Report RL32716,
Individuals with Disabilities Education Act (IDEA): Analysis of Changes Made by P.L.

108-446, by Richard N. Apling and Nancy Lee Jones. This report will not be updated.

The Individuals with Disabilities Education Act¹ is both a grants statute and a civil
rights statute. It provides federal funding for the education of children with disabilities
and requires, as a condition for the receipt of such funds, the provision of a free
appropriate public education (FAPE). The statute also contains detailed due process
provisions to ensure the provision of FAPE. Originally enacted in 1975, the act
responded to increased awareness of the need to educate children with disabilities, and
to judicial decisions requiring that states provide an education for children with

¹ 20 U.S.C. §1400 et seq.
Congressional Research Service ˜ The Library of Congress

disabilities if they provided an education for children without disabilities.² Although
much of the basic structure of IDEA has been retained, P.L. 108-446 does make a number
of significant changes. Among these are the definition of “highly qualified” teachers,
calculation of maximum state grants, funding for high-need children with disabilities,
revised state performance goals and requirements for children’s participation in state and
local assessments, changes in the private school provisions, exceptions to certain financial
requirements, changes in procedural safeguards, and changes in compliance monitoring
to focus on student performance.
Highly Qualified Teacher. P.L. 108-446 links its definition of “highly qualified”
to the definition in Section 9101(23) of the Elementary and Secondary Education Act
(ESEA)³ but modifies that definition as it applies to special education teachers. P.L. 108-
446 provides additional requirements and options to the definition with respect to special
education teachers. If the special education teachers meet the IDEA criteria, they are
considered to have met the ESEA requirements to be highly qualified. First of all, to be
highly qualified under IDEA, all special education teachers (whether they teach “core
subjects”⁴ or not) must hold at least a bachelor’s degree and must obtain full state special
education certification or equivalent licensure.⁵ Special education teachers who have
emergency, temporary, or provisional certification do not meet the IDEA definition. In
addition, P.L. 108-446 modifies the ESEA requirements with respect to two groups of
special education teachers: those who teach only the most severely disabled children
and those who teach more than one core subject. One significant modification that
P.L. 108-446 makes is that new special education teachers in these groups can meet the
definition of “highly qualified” through state examinations, such as “a high objective
uniform State standard of evaluation” (i.e., HOUSSE). Under ESEA, this option is
available only to veteran teachers.⁶
Maximum Grant Calculation and Authorizations. Prior to the enactment of
P.L. 108-446, the maximum amount states could receive under the Part B grants-to-states
program was based on 40% of the national average per pupil expenditure (APPE) for

² For a more detailed discussion of the congressional intent behind the enactment of P.L. 94-142
see CRS Report 95-669, The Individuals with Disabilities Education Act: Congressional Intent,
by Nancy Lee Jones.
³ The ESEA definition of “highly qualified” applies only to teachers of core academic subjects
and differentiates between new and veteran teachers and between those teaching at the
elementary level and above the elementary level. Thus, under ESEA, the “highly qualified”
definition would apply only to those special education teachers who teach core subjects (albeit
this is probably most special education teachers). For information on ESEA requirements, see
CRS Report RL30834, K-12 Teacher Quality: Issues and Legislative Action, by James Stedman.
⁴ ESEA §9101(11) defines “core academic subjects” to include “English, reading or language
arts, mathematics, science, foreign languages, civics and government, economics, arts, history,
and geography.” P.L. 108-446 cross-references this definition (§602(4)).
⁵ §602(10)(B).
⁶ For further information on the definition of “highly qualified,” see CRS Report RL31383, The
Individuals with Disabilities Education Act (IDEA): Implications of Selected Provisions of the
No Child Left Behind Act (NCLBA), by Richard N. Apling and Nancy Lee Jones. (Cited hereafter
as Implications of NCLBA).

public K- 12 education times the number of children with disabilities the state serves.⁷
The sum of these maximum grants is often referred to as IDEA “full funding.” P.L. 108-
446 maintains this maximum-grant calculation through FY2006. Thereafter, the
maximum grant will be 40% of APPE times the number of children with disabilities the
state served in school year 2004-2005 adjusted by the annual rates of change in the state’s
population in the age range comparable to ages for which the state provides FAPE for
children with disabilities⁸ (85% of the adjustment) and in the state’s children living in
poverty in the same age range (15% of the adjustment).⁹ In addition, P.L. 108-446
provides specific authorization levels for FY2005-FY2011, aimed at reaching “full
funding” in the latter fiscal year.¹⁰
Risk Pools for High-Need Children with Disabilities.¹¹ Provision of¹²
medical or other expensive services to ensure FAPE has resulted in very high costs for
some school districts. P.L. 108-446 aims to address these high costs by permitting states
to reserve 10% of the funds reserved for other state activities (or 1 to 1.05% of the overall
state grant) to establish and maintain a risk pool to assist LEAs serving high-need children
with disabilities. States taking advantage of this option must develop and annually review
a state plan in which the state determines which children with disabilities are high need,¹³¹⁴
sets out the procedures by which LEAs participate in the risk pool, and determines how
funds are distributed. Funds distributed from the risk pool must only pay for “direct
special education and related services” for high need children with disabilities and may
not be used for legal fees or related costs. If some funds are not distributed for services
for high need children, they are to be distributed to LEAs according to the substate
formula.¹⁵

⁷ P.L. 105-17 §611(a)(2).
⁸ For most states this age range is 3 to 20 or 3 to 21.
⁹ §611(a)(2). For example, if a state’s relevant population for school year 2007-2008 rose by 3%
above its 2004-2005 population and its number of children living in poverty rose by 2% above
the 2004-2005 number, then its 2007-2008 maximum grant would be the appropriate APPE for
that year times the 2004-2005 number of children with disabilities served increased by 2.85%
(85% of 3% plus 15% of 2% = 2.55% + 0.3% = 2.85%).
¹⁰ P.L. 108-446 authorizes “such sums” for succeeding fiscal years (preserving the permanent
authorization of the Part B grants-to-states program) (§611(i)).
¹¹ (§611(e)(3)).
¹² These provisions, contained in previous law and continued in the 2004 reauthorization, have
been interpreted by the Supreme Court to mean that schools must provide medical services unless
they are provided by a doctor or hospital. Independent School District v. Tatro, 468 U.S. (1984);
Cedar Rapids Community School District v. Garret F., 526 U.S. (1999).
¹³ P.L. 108-446 requires that the cost for serving these children must be greater than three times
the national average per pupil expenditure (APPE) as defined in Section 9101 of the ESEA
(§611(e)(3)(C)(ii)(I)(bb)).
¹⁴ State-determined LEA eligibility criteria must take “into account the number and percentage
of high need children with disabilities served ...” (§611(e)(3)(C)(ii)(II)).
¹⁵ §611(e)(3)(I).

Private Schools. A child with a disability may be placed in a private school by
the LEA or SEA as a means of fulfilling the FAPE requirement for the child in which case
the cost is paid for by the LEA. A child with a disability may also be unilaterally placed
in a private school by his or her parents. In the latter situation, the cost of the private
school placement is not paid by the LEA unless a hearing officer or a court makes certain
findings. However, IDEA does require some services for children in private schools, even
if they are unilaterally placed there by their parents. Exactly what these services are or
should be has been a contentious subject for many years. The 1997 reauthorization of
IDEA expanded the private school provisions and the 2004 reauthorization includes
several changes to the provisions relating to children who are placed in private school by
their parents. The provisions relating to children placed in private schools by public
agencies were not changed.
Generally, children with disabilities enrolled by their parents in private schools are
to be provided special education and related services to the extent consistent with the
number and location of such children in the school district served by a LEA pursuant to
several requirements (§612(a)(10)(A)(i)). This provision was changed from previous law
by the addition of the requirement that the children be located in the school district served
by the LEA. The Senate report described this change as protecting “LEAs from having
to work with private schools located in multiple jurisdictions when students attend private¹⁶
schools across district lines.” P.L. 108-446 adds requirements that the LEA consult
with private school officials and representatives of the parents of parentally placed private
school children with disabilities. In addition, the new law adds compliance procedures
which allow a private school official to submit a complaint to the SEA about the
consultation and, if the private school official is dissatisfied with the SEA’s response, he
or she may submit a complaint to the Secretary of Education.
Performance Goals and Indicators. P.L. 108-446 revises state requirements
for performance goals and indicators mainly by linking these to requirements under the
ESEA. In the prior version of IDEA, states were required to have performance goals for
children with disabilities that were “consistent, to the maximum extent appropriate, with
other goals and standards for children established by the state” and to establish indicators
to measure performance.¹⁷ P.L. 108-446 changes this provision to require that a state’s
performance goals “are the same as the State’s definition of adequate yearly progress
(AYP),¹⁸ including the State’s objectives for progress by children with disabilities” under
ESEA.¹⁹ P.L. 108-446 also links performance indicators to ESEA requirements: a state’s
indicators for measuring progress must include “measurable annual objectives for
progress by children with disabilities” under ESEA.²⁰

¹⁶ S. Rep. No. 185, 108^th Cong., 1^st Sess. 15-16 (2003).
¹⁷ P.L. 105-17 §612(a)(16)(A)(ii) and (B).
¹⁸ For further information on AYP, see CRS Report RL32495, Adequate Yearly Progress (AYP):
Implementation of the No Child Left Behind Act, by Wayne Riddle.
¹⁹ §612(a)(15)(A)(ii).
²⁰ §612(a)(15)(B). See also the discussion of performance plans under §616 infra.

Participation in Assessments. P.L. 108-446 amends assessment participation
requirements to align them with ESEA requirements.²¹ IDEA now requires that all
children with disabilities be included in all state and district-wide assessments, including
assessments required under ESEA, with accommodations or alternative assessments if
necessary and as included in the child’s individualized education program (IEP).²² P.L.
108-446 now assumes that states have developed guidelines for accommodations
(§612(a)(16)(B)) and that states have implemented guidelines for alternative assessments.
(§612(a)(16)(C)) Such alternative assessments must follow ESEA requirements — most
notably they must be “aligned with the State’s challenging academic content standards
and challenging student academic achievement standards.” (§612(a)(16)(C)(ii)(I)) P.L.
108-446 also provides states with the option of adopting alternative academic standards
as permitted by ESEA regulations. If the number of those tested is sufficient to ensure
statistical reliability and confidentiality, the achievement of children with disabilities is
to be compared with the achievement of all children and such comparisons are to be
publically reported. Finally, P.L. 108-466 requires the state and districtwide tests adhere²³
to “universal design principles” to the extent feasible.
Exceptions to Local Maintenance of Effort. Like many other federal
education programs, IDEA requires states and LEAs to maintain fiscal effort (MOE),
which, generally in IDEA, requires that state and local spending on special education not
be reduced from one year to the next (i.e., a 100% MOE). Prior law allowed certain
exceptions to local MOE, one of which allowed LEAs to “treat as local funds” for the
purpose of meeting the MOE requirement up to 20% of any annual increase in their IDEA
gr a n t .²⁴
P.L. 108-446 makes major changes to this exception. First of all, LEAs may use up
to 50% of the increase in their IDEA grant to “reduce the level of expenditure” for special
education (§613(a)(2)(C)(i)). In addition (unlike prior law), P.L. 108-446 requires LEAs
exercising this option to use the funds for “activities authorized under the Elementary and
Secondary Education Act of 1965” (§613(a)(2)(C)(ii)) and for early intervention services
discussed below. P.L. 108-446 continues to provide state authority to prohibit LEAs from
using this authority, except that it modifies the criteria for exercising the prohibition and
requires states (prior law permitted states) to exercise the prohibition if warranted.²⁵
Procedural Safeguards. Section 615 of IDEA provides procedural safeguards
for children with disabilities and their parents. This section has been a continual source

²¹ Under the previous version of IDEA, states were required to include children with disabilities
“in general State and district-wide assessment programs, with appropriate accommodations,
where necessary.” For children who could not participate in these assessments, states had to
develop and implement alternative assessments and guidelines for participation in these
alternative assessments. (P.L. 105-17 §617(a)(17)(A)).
²² §612(a)(16)(A).
²³ For further discussion of assessment requirements, see Implications of NCLBA.
²⁴ P.L. 105-17 §613(a)(2)(C).
²⁵ P.L. 108-446 extends this MOE exception to a state that “pays or reimburses all local
educational agencies within the State from State revenue 100 percent of the non-Federal share
of the costs of special education and related services” (§613(j)).

of controversy, especially the provisions relating to the discipline of children with
disabilities. The House and Senate bills differed dramatically in their §615 language. The
changes made by P.L. 108-446 include adding provisions relating to homeless children,
adding a two year statute of limitations for the filing of a complaint and a two year statute
of limitations regarding requests for a hearing, adding additional requirements for hearing
officers, and specifically allowing the local educational agency, not just the parents, to file
for a due process hearing.
One of the major changes was the addition of a “resolution session.” This is a
preliminary meeting between the parents and the LEA and IEP team held within 15 days
of receiving the parent’s complaint. The reason for this addition was to attempt to resolve
disputes prior to the more adversarial due process hearing. The House report noted that
the resolution session “is intended to improve the communication between parents and
school officials, and to help foster greater efforts to resolve disputes in a timely manner
so that the child’s interests are best served.”²⁶ If an agreement is reached during the
resolution session, the parties must execute a legally binding agreement signed by both
parties and which is enforceable in court.
The new law includes limitations on issues that are allowed to be raised in the due
process hearing in an attempt to ensure that the parties know, with clarity and specificity
exactly what the problems are. The party requesting the hearing is not allowed to raise
issues at the due process hearing that were not raised in the due process complaint notice.
In addition, P.L. 108-446 also requires that the decision made by a hearing officer be
made on substantive grounds “based on a determination of whether the child received a
free appropriate public education.” However, if a matter alleges a procedural violation
of IDEA, the law would allow a hearing officer to find that a child did not receive FAPE
under certain conditions.
Congress kept the same basic structure for attorneys’s fees and allows a court, in its
discretion to award reasonable attorneys’ fees as part of the cost to a prevailing party.
However, the 2004 reauthorization allows for attorneys’ fees not only against the local
educational agency but also in some situations against the attorney of a parent or the
parent.
Compliance Monitoring. Generally, Congress determined that the previous law
on monitoring focused too much on compliance with procedures and in the 2004²⁷
reauthorization, shifted the emphasis to focus on student performance. Under the new
law, the Secretary of Education is to monitor implementation of part B by oversight of the
general supervision by the states and by the state performance plans. The Secretary is to
enforce part B as described in §616(e) and to require states to monitor implementation by
LEAs and to enforce part B. Under P.L. 108-446, the primary focus of federal and state
monitoring activities is to be on improving educational results and functional outcomes
for children with disabilities and ensuring that states meet the program requirements.
(§616(a)(2)) The new law lists certain priority areas for monitoring which are to be
monitored using quantifiable indicators.

²⁶ H. Rep. No 77, 108^th Congress, at 114 (April 29, 2003).
²⁷ See S.Rep. No. 185, 108^th Cong., 1^st Sess. 46 (2003); H.Rep. No. 77, 108^th Cong., 1^st Sess. 120
(2003).